Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the National Legal Aid & Defender Association Annual Conference, Indianapolis, IN
Thursday, November 10, 2016
Thank you, Jo-Ann [Wallace], for your kind words and for your strong, innovative leadership of the National Legal Aid and Defender Association. For more than a century, NLADA has devoted itself to the cause of equal justice. Since 1911, from Gideon and Gault, through briefs and legislation, with advocacy and research, you have fought to make justice real and accessible for all. And today, in communities around the country, you continue to fight for that mission. You use the law to protect the dignities, freedoms and rights of the most vulnerable among us. Your work touches far more than individuals. You impact entire communities. And you help to strengthen the integrity of our justice system.
When we, as a society, support civil legal aid and public defender programs, we fulfill a core promise of America. In our country, all people – regardless of wealth or poverty, status or stature, color or creed – are entitled to a set of undeniable rights: equal protection, fundamental fairness and impartial justice. These rights define the essence and purpose of America. Yet despite transformative legal and social progress over the years, for too many people, particularly people of color and people living in poverty, day-in and day-out these rights are neglected. At times, these rights are systematically denied. I know everyone in this room has been working to make our country live up to its highest ideals, as you continue disrupting the devastating connections between race, poverty and injustice.
The entire Department of Justice – including the outstanding career professionals of the Civil Rights Division – has been focused on these same critical issues. The division that I have the privilege to lead is firmly committed to vindicating rights and remedying inequities. Our investigation into the Ferguson, Missouri, Police Department and Municipal Court last year shined a national spotlight on the intersection of poverty, policing and injustice. In addition to discrimination against African-American residents, we found the city using policing as a means to generate revenue. The city routinely issued multiple citations with excessive fines and fees for minor violations – fines like $302 for jaywalking, $427 for disturbing the peace and $531 for allowing high grass and weeds to grow on your lawn. When people living in poverty could not pay these fines and fees, they were arrested, jailed and faced payments that far exceeded the cost of the original ticket. These practices broke the law. They punished poverty. And they destroyed trust. Our Ferguson report resonated so widely because it gave voice to the sometimes subtle, but dangerous ways that the justice system can corrode a community’s belief that its government operates fairly. The belief – so essential to effective self-governance and the rule of law – that public institutions treat people with dignity and decency.
Our report also resonated so widely because the problems we found in Ferguson exist around the country. Earlier this year, in partnership with our colleagues at the Office for Access to Justice, led by their energetic director, Lisa Foster, we sent a dear colleague letter to state and local judges to help them guard against unlawful fine, fee and bail practices that can trap people in inescapable cycles of debt, poverty and incarceration. The letter makes clear, as the Supreme Court ruled decades ago, that our Constitution prohibits “punishing a person for his [or her] poverty.” And we’ve also made clear that punishing poverty doesn’t only violate the law. It destroys lives. It derails futures. It tears apart families. And it threatens the well-being of communities.
You all know that. You see the impact fines and fees have on the lives of your clients and in the communities where you live and work. And I am overwhelmed and overjoyed that so many of you want to join the battle to end the unlawful and unconstitutional enforcement of fines and fees. Last month, NLADA hosted a webinar for both defenders and legal aid lawyers, including Legal Services Corporation (LSC)-funded programs, on court debt advocacy. Over 400 of you participated in or downloaded the webinar.
This Justice Department continues to work alongside you to end harmful and unlawful practices that result in punishing poverty. This past Monday, we filed a statement of interest in a Virginia case – brought by the Legal Aid Justice Center – centered on the state’s automatic suspension of driver’s licenses for people who fail to pay court fines and fees. In Virginia, 900,000 people – or one in six drivers – have had their licenses suspended under these circumstances. We know how devastating the consequences can be. People depend on driver’s licenses to get to work, to go to the doctor and to provide for their families. In our brief, we explained that suspending a person’s license for non-payment of court debt – without first providing her a hearing and without inquiring into whether she is simply too poor to pay – violates the Constitution.
This Justice Department has also taken a holistic approach to addressing unlawful practices that end up punishing poverty. Even today, 53 years after Gideon v. Wainright, in too many communities, indigent defense is in crisis. And in too many places, the right to counsel is observed in name only. Let us make no mistake – public defenders, including so many of you here today, work tirelessly on behalf of some of the most vulnerable among us. But if due to underfunding and high burdens, you can’t perform core functions of your jobs, people living in poverty suffer. Entire communities – indeed, our justice system itself – suffers. And our country falls short of its founding ideals. The Justice Department is doing what we can to address the right-to-counsel crisis playing out at the state and local level. In courts around the country – from Washington, to New York, to Pennsylvania, to Georgia, to Idaho – the Civil Rights Division and Access to Justice have argued that if public defenders can’t talk confidentially with their client, if they can’t investigate the allegations and if they can’t meaningfully test the prosecution’s case, that can violate the Sixth Amendment. But there is much more work to be done. And we believe that part of the answer is a recognition, across the country, of the need for court-appointed counsel for the indigent at bail hearings.
In the juvenile justice system as well – from Missouri, to Mississippi, to Tennessee – we’ve worked to enforce the due process rights of all children. Far too often, our most vulnerable youth – children living in poverty, children with disabilities and children of color – get stuck in the juvenile justice system and find themselves on a pipeline to prison. Our 2012 investigation into the Juvenile Court of Memphis and Shelby County, Tennessee, exposed a series of due process violations tied to inadequate access to counsel. The juvenile court had failed to hold timely probable cause hearings for children arrested without a warrant. It had fallen short of its legal duty to protect children from self-incrimination during probation conferences. And it had often neglected to hold hearings before transferring children to an adult criminal court. Our work led to a transformative settlement agreement and a specialized juvenile defender’s office. The juvenile defender’s office continues to build its capacity, providing more youth in need with attorneys who have reasonable workloads and effective training. We also demanded that the court do precisely what Gault and Kent require – hold probable cause and transfer hearings. These reforms hold the potential to make Shelby County a model for juvenile courts across the country. And let me just add, that as public defenders and legal aid lawyers, you often get a unique window into the problems, and potential civil rights violations, that arise in local juvenile justice systems. And so we need you to continue serving as our eyes and ears, alerting us to problems in your communities.
We’ve also addressed the punishment of poverty by addressing unlawful bail policies and practices in cases from Alabama to Georgia. In the Georgia case, Walker v. City of Calhoun, the lead plaintiff, Maurice Walker, is a 54-year-old man with a serious mental health disability. He lives on $530 per month of Social Security disability benefits. He was initially arrested on a misdemeanor charge of walking while intoxicated. But he couldn’t afford the $160 in bail, so he stayed in jail for six nights. In August, the Justice Department filed a brief in the 11th Circuit Court of Appeals. We argued that if bail practices result in jailing people because of their poverty – without consideration of their ability to pay or alternatives to incarceration – such practices violate the Constitution. They also impede the fair and impartial administration of justice. And they are simply bad public policy, causing people to lose their jobs, their health benefits or their homes as they struggle to provide for their families.
We’ve addressed the punishment of poverty in other areas as well, often with the help of legal aid programs represented here today. In a case brought by Idaho Legal Aid Services, we argued last year that because every human being must sleep at some time and in some place, arresting and punishing a person for sleeping in public – when there aren’t enough shelter beds in the city and she has nowhere else to go – criminalizes the status of being homeless. As one of the plaintiffs in that case, Janet Bell, said in a news interview, “Of course, everybody wants to move the homeless, but they got to be somewhere, don’t they?” The bottom line is that every human being must sleep at some time and in some place. Being homeless is a hardship – not a crime.
Safeguarding access to justice also requires ensuring that all people – regardless of where they come from or which language they can speak – receive the full rights and protections they deserve. We know that across our justice system, language access barriers can impede the ability of state courts to accurately evaluate facts and fairly administer justice. And they can also place unfair and, at times, unconstitutional burdens on individuals – from litigants, to defendants, to victims, to witnesses – who participate in court proceedings or seek assistance from court programs and services. In 2010, we launched a Courts Language Access Initiative to clarify that courts receiving federal financial assistance must provide meaningful access for LEP individuals. And through a range of efforts, in states across the country – from Maine and Rhode Island to North Carolina and Colorado, and from Los Angeles County, California, to King County, Washington – we’ve worked to ensure that courts fully comply with their language access obligations. Many of these cases were filed by legal aid offices and many of the advances made to change the norm in this area can be attributed to those offices and to the broader National Language Access Advocacy Network. Access to justice must remain a right for all, not a privilege for some.
As legal aid lawyers, you know that people living in poverty face legal challenges outside of the justice system as well. For those already living paycheck-to-paycheck, a single incident – whether an eviction by a landlord, a default on a debt or barriers to obtaining safety net benefits – can lead to a cycle of profound problems that ruin lives. Many of the most vulnerable among us can’t navigate the technicalities of our legal system on their own. Research also shows that many in need may not even view their problems as legal problems. Perhaps even fewer see them as civil rights violations. And for those who do seek legal assistance, legal aid lawyers often lack the resources to meet their needs. Roughly 63 million people qualify for free civil legal aid in the United States, but more than half of those who seek help find themselves turned away.
That’s why, since 2012, the White House Domestic Policy Council and the Justice Department have convened nearly 20 federal agencies as the Legal Aid Interagency Roundtable or LAIR. We recognize that equal access to justice matters. And we recognize that a wide range of federal programs and policies can more effectively impact the communities we serve – including low-income and other vulnerable populations – when they collaborate with and support civil legal aid. Across an array of areas – from health care, to housing, to employment, to education – we see an opportunity and a need to bring legal aid providers into our anti-poverty programs, into civil rights enforcement and into the policy conversations.
In the coming days, the now White House LAIR – staffed by the Justice Department’s Office for Access to Justice and represented here today by Senior Counsel Allie Yang-Green and LAIR’s Executive Director Karen Lash – will publish its first annual report to President Obama. And I’m pleased to say it includes a spotlight on how some of the Civil Rights Division’s work truly depends on what you do. In housing – with the leadership of my colleagues, like Tamar Hagler, Deputy Chief in our Housing and Civil Enforcement Section – we’ve continued to collaborate with legal aid providers to enforce the Fair Housing Act. Discriminatory practices – whether sexual harassment by landlords against low-income women or local government efforts to exclude group homes for people with disabilities – often threaten the housing rights of already vulnerable populations, placing them at risk of becoming homeless. In employment, we’ve partnered with legal aid organizations around the country to prevent discrimination based on citizenship, immigration status and national origin. We’ve worked to educate legal aid organizations about the statutes we enforce, about how to file complaints and about available free resources, including webinars on disrupting the school-to-prison pipeline and how to access and tabulate census data in civil rights cases. And in emergency management, we’ve issued guidance with several other federal agencies to protect the civil rights of those affected by disasters, urging recipients of federal disaster funds to consider working with legal aid organizations before, during and after an emergency. We also heard from many of you about civil rights concerns in family law cases – whether on the basis of disability, race, national origin, language or other protected bases – and we’re working with the Department of Health and Human Services and stakeholders on an initiative to address these concerns, starting with guidance documents to courts and child welfare agencies.
In the reentry space that so clearly connects the civil and criminal justice communities, the LAIR report also spotlights grants and new training and technical assistance, like the Justice Department and Department of Housing and Urban Development Juvenile Reentry Assistance Program grants that deliver legal aid to eligible public housing residents under the age of 25. And a Department of Labor and Justice Department collaboration, the brand new National Clean Slate Clearinghouse, will soon provide technical assistance to local legal aid programs, public defender offices and reentry services providers to help with record-cleaning, expungement and related civil legal services. People who served their time and paid their debt to society deserve a chance to restart their lives and contribute to their communities. And legal aid lawyers, civil rights lawyers and public defenders play a critical role in that process.
As legal aid lawyers and public defenders, you epitomize and effectuate the core promise and mission of civil rights work. You help to vindicate the rights of vulnerable communities, from low-income families, to people of color, to Native Americans, to LGBTI women and men. In the Civil Rights Division, we depend on all of you to do our work better and to advance the cause of justice. Sometimes in the legal profession, however, we allow ourselves to fall into these divides or get used to these distinctions that – while they make sense to us as lawyers – don’t always serve the broader interests of the public. Our justice system works most effectively, and our democracy functions at its best, when we build bridges between legal aid, civil rights and public defenders – and when legal aid lawyers, civil rights lawyers and public defenders talk to one another. We’re advancing this approach at the Justice Department, but also in my own family. My husband, Chinh, serves as the Legal Director of the Legal Aid Society in D.C. So I hear all the time about the need for robust partnerships with the legal aid community.
We need to work in partnership to protect vulnerable communities. And we need to recognize that poverty, access to justice, police misconduct, criminal justice reform and other civil rights concerns are not separate issues. They are one struggle. The voice of the legal aid community – your voice – must be heard on all of these issues. When Toussaint Romain, a public defender in Charlotte, North Carolina, marched with his community in the aftermath of a police-involved shooting he reminded all of us of the responsibility we have to use our voice and our power as lawyers to address not just the legal problems clients bring in the door, but also the underlying systems of injustice that fuel those problems.
Your joint NLADA and Shriver Center Statement on standing up for racial justice sets the stage for your racial justice action plan. I encourage you to engage with the Justice Department and civil rights offices across the federal government as part of that plan. I know that several Civil Rights Division staff are here to continue and deepen that engagement, and I have asked my colleague Christine Stoneman, head of the Federal Coordination and Compliance Section in the Civil Rights Division, to lead that dialogue for the division during the civil caucus and beyond.
The title for this conference – “Advocacy at a Crossroads” – highlights the urgency of our collective mission to advance equal justice and equal opportunity for all. Since America’s earliest days, lawyers have always been central to advancing that mission and fulfilling that promise. Lawyers like you and your colleagues remain central to that same task today. More than half a century ago, Attorney General [Robert] Kennedy once said, “The poor man looks upon the law as an enemy, not as a friend. For him the law is always taking something away. It is time to recognize that lawyers have a very special role to play in dealing with this helplessness. And it is time we filled it.” The distinguished lawyers, advocates and leaders here today are filling that void. And in so doing, you are shaping our country and our communities for the better. I want to thank you, once again, for the privilege to join you this morning. I look forward to our ongoing partnership and steadfast engagement in this vital work.